Tuelle v. Flint

• Decision Date: 26 May 1933
• Citation: 283 Mass. 106,186 N.E. 222
• Parties: TUELLE v. FLINT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 106

186 N.E. 222

TUELLE

v.FLINT.

Supreme Judicial Court of Massachusetts, Essex.

May 26, 1933.

Appeal from Probate Court, Essex County; White, Judge.

Petition for the appointment of a conservator, by Edward Tuelle against Grace L. Flint. From a decree appointing a conservator, defendant appeals.

Affirmed.

C. C. Steadman, of Boston, for appellant.

J. J. Ronan and W. A. Pew, both of Salem, and J. A. Brickett, of Boston, for appellee.

RUGG, Chief Justice.

The petitioner, a resident of this Commonwealth, on March 2, 1932, brought this petition as a relative of the respondent alleging that she was a resident of Salem in our county of Essex and that there was occasion for the appointment of a conservator to care for her property. General appearances were entered in behalf of the respondent and of her next of kin. Thus the court acquired jurisdiction over the respondent. Hersey v. Hersey, 271 Mass. 545, 548, 171 N. E. 815, 70 A. L. R. 518. A decree was entered on April 8, 1932, reciting (1) that ‘it is found that the domicile of said Grace L. Flint is Salem,’ (2) that ‘by reason of mental weakness and incapacity’ she ‘is incapable of properly caring for her property,’ and (3) ‘that she has property to a considerable amount in said Salem,’ and appointing a conservator to have the charge and management of said property under the direction of the court. The respondent appealed from this decree. The case was tried at length upon oral and documentary evidence. All of it has been reported and is before us in a voluminous record. The judge made no findings of material facts aside from the recitals in the decree.

Our attention has been directed to the fact that since the argument at the bar the conservator appointed by this decree has deceased. The issues raised by the appeal are not affected by this fact. It constitutes no reason why they should not be decided. The conservator did not become a party to this appeal and no argument was made in his behalf.

It was conceded at the trial by counsel for the respondent that there was within the Commonwealth a large amount of property belonging to the respondent and that she was a person proper for appointment of a conservator over her property. There is no dispute that this property includes both real and personal estate. These facts therefore are accepted as true.

The first contention of the respondent is that the trial judge was plainly wrong in finding that she was a resident of Salem. An appeal from a decree of a probate court with full report of the evidence is treated according to the practice in equity so far as practicable and applicable. Churchill v. Churchill, 239 Mass. 443, 445, 132 N. E. 185;Drew v. Drew, 250 Mass. 41, 144 N. E. 763. The familiar rule in equity is that on an appeal with full report of the evidence it is the duty of this court to decide the case upon its own judgment of the evidence giving due weight to the findings of the trial judge and not reversingthem unless plainly wrong. Such findings rarely ought to be reversed where they rest upon oral testimony of witnesses, because the trial magistrate, having seen them and observed their actions, has far better opportunity for testing their honesty, weighing their credibility and ascertaining the truth than an appellate tribunal can have by merely reading a transcript of evidence. Intelligent scrutiny of witnesses while giving testimony affords evidence as to the dependence fairly to be attributed to their words. Many factors as to the real value of oral testimony are incapable of being transferred to a printed page. Moss v. Old Colony Trust Co., 246 Mass. 139, 144, 140 N. E. 803.

The ascertainment of the domicil of a person is mainly a question of fact. Feehan v. Tax Commissioner, 237 Mass. 169, 171, 129 N. E. 292;Hutchins v. Browne, 253 Mass. 55, 57, 147 N. E. 899;Hayes v. Hayes, 256 Mass. 97, 152 N. E. 91. General principles governing the nature, acquisition and change of domicil are settled. An exact and comprehensive definition of domicil is difficult. In general it is said to be the place of one's actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode. Every one must have a domicil somewhere. Every one has a comicil of origin. A domicil once established continues until a new one is acquired regardless of changes in temporary sojourn. Mere absences from home even for somewhat prolonged periods do not work a change of domicil. Intention without the concurrence of the fact of residence is not sufficient to change or to create domicil. Both must coexist. Aspiration, hope, desire or mere verbal assertion, although evidence of intention, cannot overcome the force of irrefutable facts. Cases arise in which there is a distinction between domicil and residence. A person may have a residence in one place for various reasons comparatively temporary in nature such as performing the duties of an office, transacting a business, seeking improvement in health, pursuing pleasure or visiting relatives, and yet have his permanent home or domicil in a different place. President, etc., of Harvard College v. Gore, 5 Pick. 370;Sears v. Boston, 1 Metc. 250;Inhabitants of Wilbraham v. Inhabitants of Ludlow, 99 Mass. 587;Thayer v. Boston, 124 Mass. 132, 139, 144-146,26 Am. Rep. 650;Borland v. City of Boston, 132 Mass. 89, 42 Am. Rep. 424;Andrews v. Andrews, 176 Mass. 92, 57 N. E. 333;City of Marlborough v. City of Lynn, 275 Mass. 394, 397, 176 N. E. 214;White v. Loftus, 275 Mass. 559, 176 N. E. 646.

There was evidence on the issue whether the respondent was a resident of Salem tending to show these facts: The Respondent is a childless widow perhaps three score years of age. She lived for many years with her husband in a home in Salem, where without question her domicil then was. After his death in 1922 she continued to live in the same home with her mother until 1925. Then she and her mother lived at a hotel in Boston until the death of the latter in October, 1930. She then stayed at the home of friends in Salem until December, 1930, when she went to the house of her aunt in Eliot, Maine, where she has since remained. On going there she took with her a trunk, a large suit case belonging to the friend in whose home she had been staying, and a large black silk hand bag. None of her furniture has been taken to that house. She has continued to own the homestead in Salem where she lived with her husband and mother, has kept it in repair and fully furnished as when she lived in it, and some of her clothing has remained in it. When the suggestion has been made to her that she rent or sell it, she has refused to do so, saying that she might go back to it some time; she said many times that she never ought to have left it. It was frequently visited by her attorney or agent. Management of her property both real and personal was largely in the hands of the attorney in Salem who settled her husband's estate. Her checking account was in a Salem bank and the regular statements were sent to her. She has paid her income tax in Massachusetts. Evidence to this effect was largely undisputed.

There was testimony from several witnesses that she spoke of this going to the house of her aunt as a visit and that she did not know how long she would stay. She was sometimes referred to as a guest in that house. There she occupied a large room. She spent much time in bed there, did not leave her room for several weeks at a time, and cried a good deal. There was much evidence that she had great difficulty in making up her mind upon any course of conduct. She bought no dresses while in Maine and complained to a friend that she felt like a tramp because she had so few clothes and did not feel fit to go anywhere. She appeared unhappy a great deal of the time, was blue and despondent, and complained frequently that she was lonesome and homesick, that her room was cold and her surroundings were uncongenial, that she did not know why she was there, that she never should have come there and should never have stayed there. Once she made arrangements to return to Salem but her aunt shortly afterwards telephoned to the friend with whom she was going not to come for her. There was other testimony as to facts and circumstances repugnant to the idea that she had acquired a domicil at the house of her aunt. The respondent did not testify in her own behalf. There was testimony to the effect that statements had been made by the respondent that she intended to make her home with her aunt. It is not necessary to narrate testimony, facts and permissible inferences tending to show that evidence indicating intent on the part of the respondent to make her home at the house of her aunt was untrustworthy. The trial judge would have been justified in discrediting testimony of that nature and in believing both from direct evidence and from reasonable inferences from all the facts that her domicil remained in Salem. Retention of her home in Salem, keeping it fully furnished and in repair, refusing to rent or sell it, coupled with other facts which might have been found, amply warranted the inference that she had never lost her domicil there. A careful examination of all the evidence convinces us that the finding of the trial judge that...